Fordham International Law Journal Volume 31, Issue 3 2007 Article 4 New Ways of Thinking About Cultural Property: A Critical Appraisal of the Antiquities Trade Debates Alexander A. Bauer∗ ∗ Copyright c 2007 by the authors. Fordham International Law Journal is produced by The Berke- ley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj New Ways of Thinking About Cultural Property: A Critical Appraisal of the Antiquities Trade Debates Alexander A. Bauer Abstract In debates over the trade in archaeological objects or antiquities, on one end are those who be- lieve that everyone has a shared interest in and claim to the common heritage of humanity, and thus support a vibrant and legal trade in cultural materials. On the other end are those who believe that cultural objects have special significance for specific groups and thus support the efforts of such groups to regulate their trade and seek their repatriation. The aim of this Essay is to critically exam- ine the components of each group’s arguments–their goals, assumptions, and inconsistencies–and try, where possible, to identify what implicit concerns may be driving their current stances in the debate. For it is only when we unpack the individual positions and arguments of the different stakeholders in the antiquities debates that we may move the discussion forward from its current stalemate and develop more nuanced policies, which not only may represent pragmatic solutions, but might better satisfy the many interests involved. ESSAYS NEW WAYS OF THINKING ABOUT CULTURAL PROPERTY: A CRITICAL APPRAISAL OF THE ANTIQUITIES TRADE DEBATES Alexander A. Bauer* INTRODUCTION Debates over the trade in archaeological objects or antiqui- ties are contentious, emotional, and often contain not-so-subtle claims about the relative morality of its interlocutors. At one end are those who believe that everyone has a shared interest in and claim to the common heritage of humanity, and thus sup- port a vibrant and legal trade in cultural materials. On the other end are those who believe that cultural objects have special sig- nificance for specific groups and thus support the efforts of such groups to regulate their trade and seek their repatriation. The overall classification of the various voices in the debate into these two polarized positions, however, has resulted in a distilla- tion of a complex web of both convergent and divergent inter- ests into little more than a set of talking points and assumptions that are uncritically grouped together. The aim of this Essay is to critically examine the compo- nents of each group's arguments-their goals, assumptions, and inconsistencies-and try, where possible, to identify what im- plicit concerns may be driving their current stances in the de- bate. For it is only when we unpack the individual positions and arguments of the different stakeholders in the antiquities de- bates that we may move the discussion forward from its current * Lecturer, Writing Program, Princeton University, and Editor, InternationalJour- nal of CulturalProperty. E-mail: [email protected]. An earlier version of this paper was presented to the Center for Arts and Cultural Policy Studies at Princeton Univer- sity's Woodrow Wilson School, and the author would like to thank the Center's affiliates for their comments on that version. The author would also like to thank John Henry Merryman, Lyndel Prott, Daniel Shapiro, and especially Stephen Urice for their invalu- able feedback, and the editors of the Fordham InternationalLaw Journal for including him in the conference and this issue of the Journal WAYS OF THINKING ABOUT CULTURAL PROPERTY 691 stalemate and develop more nuanced policies, which not only may represent pragmatic solutions, but might better satisfy the many interests involved. I. THE PROBLEM Cultural property issues have been in the news a lot lately. In February of 2006, the Metropolitan Museum of Art (the "Met") agreed to return a host of important works, the legality of whose purchase had long been questioned, including the famed "Euphronios Krater" as well as the cache of Hellenistic silver ves- sels believed to have been looted from Morgantina in Sicily, It- aly.' Similar agreements have been made or attempted with a host of other museums, including the Museum of Fine Arts in Boston, Massachusetts, and the Getty Museum in Malibu, Cali- fornia.2 At the same time, Italy has cracked down on those who loot and traffic in cultural property within and across its borders, and these efforts have led to the trial of the well-known art dealer Robert Hecht, and even a prominent curator at the Getty Museum, Marion True.3 The United States assists Italy and several other nations with their efforts to fight the antiquities trade by helping them en- force their laws forbidding the export of antiquities. In January 2006, the United States agreed to renew its bilateral agreement with Italy, in which U.S. customs authorities will prohibit the im- port of any cultural objects from Italy dating between the Ninth Century B.C. and the Fourth Century A.D. for an additional five years, until 2011.' Since that renewed agreement, similar five- year extensions have been granted to Bolivia (December 2006), Peru (June 2007), Cyprus (July 2007), Mali (September 2007), 1. The Metropolitan Museum of Art-Republic of Italy Agreement of February 21, 2006, re- printed in 13 INT'L J. CULTURAL PROP. 427, 427-34 (2006) [hereinafter Met-Italy Agree- ment]. 2. See, e.g., David Gill & Christopher Chippendale, From Malibu to Rome: Further Reflections on Returning Antiquities, 14 INT'L J. CULTURAL PROP. 205 (2007); David Gill & Christopher Chippendale, From Boston to Rome: Reflections on Returning Antiquities, 13 INT'LJ. CULTURAL PROP. 311 (2006). 3. See Elisabetta Povoledo, Antiquities Trial Fixes on Collectors' Role, N.Y. TIMES, June 9, 2007, at B9. 4. See Press Release, Office of the Spokesman, U.S. Dep't of State, United States Extends Agreement Protecting Italy's Archaeological Materials Representing the Preclassical, Classical and Imperial Roman Periods (Jan. 19, 2006), available at http:// www.state.gov/r/pa/prs/ps/2006/59402.htm. 692 FORDHAMINTERNATIONALLAWJOURNAL [Vol. 31:690 and Guatemala (September 2007).' None of this has happened without a good deal of debate and disagreement, however. Given the United States' longstand- ing policy of minimally regulating the trade in cultural objects, many in the museum and collecting communities, who enjoy the benefits of a largely unfettered trade, do not welcome the pros- pect of increased controls. On the other hand, the increasing looting and destruction of sites worldwide does call for some- thing to be done. But the passage of the Convention on Cul- tural Property Implementation Act ("CCPIA") in 1983 repre- sented a rare compromise in what has been more usually a vitri- olic debate among the various parties involved.6 This rift has only expanded in recent years due to the actions of Italy, the renewal of its bilateral agreement with the United Nations, the expansion of the U.S.-Cyprus agreement to include coins, and the recent request from China under the CCPIA to restrict the import of all Chinese materials dating between the Paleolithic period and the Qing Dynasty, which ended in 1911, a request many critics felt was overly broad and against the spirit of the 7 Act. 5. See Chart of Emergency Actions & Bilateral Agreements, http://exchanges. state.gov/culprop/chart.html (last visited Jan. 10, 2008). These agreements are made possible by the United States' ratification and subsequent implementation of the United Nations Educational, Scientific, and Cultural Organization ("UNESCO") con- vention on cultural property. See generally Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, Nov. 14, 1970, 21 U.S.T. 2517, 823 U.N.T.S. 231. This is the world's first multilateral treaty aimed at protecting cultural property by limiting the movement of works that had been illegally exported or stolen. The treaty is not self-executing; it requires the adop- tion of legislation in each state party to give effect to its provisions. For example, al- though the United States ratified the treaty in 1972, Congress could not reach a com- promise on enabling legislation until 1983. See generally Convention on Cultural Prop- erty Implementation Act ("CCPIA"), 19 U.S.C. § 2601 (2006). Under the CCPIA, other countries petition the United States to place import restrictions on certain classes of cultural items that are under threat in part because of their trade. The United States currently has bilateral agreements with eleven nations, including the ones mentioned in the text. Note that a generation after its implementation, the Convention has had perhaps a greater impact on the practice of dealers and collectors, including museums, than it has had in courts of law. Nevertheless, its ratification and implementation by more than one hundred nations, including an increasing number of "market" nations, mark a major shift in international attitudes towards the movement of stolen and ille- gally exported cultural property. 6. See generally 19 U.S.C. § 2601. 7. See Press Release, Office of the Spokesman, supra note 4; Press Release, Office of the Spokesman, U.S. Dep't of State, U.S. and Cyprus Extend Agreement to Protect Archaelogical and Ethnological Heritage of Cyprus (July 20, 2007), available at http:// 2008] WAYS OF THINKING ABOUT CULTURAL PROPERTY 693 Import laws and treaties are not the only sources of conten- tion fanning the flames of polarized discourse. Also in the news recently were the statements of several scholars of antiquity re- garding what they felt were the overly restrictive positions of scholarly societies such as the Archaeological Institute of America and the Society for American Archaeology, prohibiting the publication of objects with an unknown history of owner- ship-known as "provenance."' Such objects are thought to be immediately suspect as being recently looted and illegally traded in contravention of the United Nations Educational, Scientific, and Cultural Organization ("UNESCO") Convention of 1970 and U.S.